General Terms and Conditions for the Supply of Products
1.1 Tenders that do not stipulate an acceptance period shall not be binding.
1.2 The present Terms and Conditions shall be binding if they have been declared applicable either in our tender, product/price list, or in our confirmation of the order. Terms and conditions of the Buyer that diverge from the present General Terms and Conditions shall not be binding unless and only to the extent they have been expressly accepted by us in writing.
1.3 If our supplies also comprise any standard software available on the Market, including any relating
documents, the relevant terms of delivery and licensing conditions of the third party suppliers concerned shall apply exclusively.
2. Advertising Prospectuses, Designs and Technical Documents
2.1 Save as provided otherwise, advertising prospectuses and catalogues shall not be binding. Datacontained in technical documents shall be binding only if expressly guaranteed.
2.2 Each party to the Contract reserves all its rights with respect to designs, documents and software handed over to the other party. The receiving party acknowledges these rights. Subject to the previous and explicit authorization in writing by the other party, the receiving party shall not make such designs, documents and software accessible to any third parties and shall use them exclusively for the purpose for which it has received them.
3.1 Save as provided otherwise, our prices are deemed to be in US-Dollars. For deliveries made to Buyers, prices applied are prices ex works (i.e. EXW respective stock location in Germany) pursuant to INCOTERMS 2010.
3.2 If the conditions on which the formation of our prices was based on, in particular currency parities or governmental taxes, charges, fees, customs duties, etc., were to vary between the submission of the tender and the contractually agreed delivery date, we shall be entitled to adapt our prices and other terms of supply to prevailing circumstances.
3.3 In the event that between the conclusion of the contract and delivery of the ordered goods, there is an increase in costs for which the seller is not responsible and which was not foreseeable by the seller, especially if such increase is based on changes to the market prices, material prices or commodity prices, which mean that the seller could only buy the goods from its suppliers at less favourable conditions than those that were foreseeable at the time the contract was concluded with the purchaser, the seller has the right to adjust the prices that were agreed with the purchaser within the limits of the changed circumstances and without charging an additional profit, if the goods are to be delivered at least two months after the conclusion of the contract. The same shall apply if, as a result of fluctuations in the exchange rate, the seller could buy the goods from its suppliers at less favourable conditions than those that were foreseeable at the time the contract was concluded with the purchaser. If the purchase price agreed with the purchaser increases by more than 10%, the purchaser may rescind the contract.
3.4 The seller shall be entitled to make deliveries or provide services only against prior payment or deposit, if after the conclusion of the contract the seller becomes aware of circumstances that could considerably reduce the purchaser’s credit worthiness and on account of which the seller could run the risk that the purchaser will not be able to settle its outstanding claims with the seller resulting from the relevant contract. The same shall apply if the purchaser refuses to pay the seller’s outstanding claims or does not pay such and no legally established or undisputed objections have been raised against the seller’s claims.
4. Terms of Payment
4.1 Unless provided otherwise, our invoices shall be due for payment immediately and shall be settled not later than on the 10th day counting from the date of the invoice, without any cash discount or other deduction allowed. Payments shall be made into any one of our bank accounts showed on our invoices. Payment shall be deemed to have been effected as so on as the amount due has been put to the credit of any one of these accounts in the currency shown on the invoice and is at our free dis-posal. The setting-off of such claims against counter-claims raised by the Buyer is not admissible.
4.2 If the Buyer is in default with respect to the agreed terms of payment, he shall be liable, without reminder, to pay default interest, from the 11th day counting from the date of the invoice, at a rate of 5%.
5. Reservation of Title
We shall remain the owner of all supplies effected by us until we have received payment in full of the agreed amount. On conclusion of the Contract, the Buyer authorizes us to have said reservation of title entered pursuant to the laws of the countries concerned, in the public registers kept for this purpose by the competent authorities of the respective countries, and to complete all relating formalities. During the whole period of the reservation of title, the Buyer shall, at his expense, maintain the supplies, take out all necessary insurance with a view to protecting them, for our benefit, against theft, total loss, fire, water and other risks, and take all further measures in order to ensure that our title is not prejudiced in any way whatsoever.
6. Delivery Period
6.1 Provided all administrative formalities have been completed, or complied with, the agreed delivery period shall start on receipt of a written order, whose technical and commercial aspects shall have been clarified. The delivery period shall be deemed to have been observed if, on its expiry, delivery has been effected, or the Buyer has been informed that the supplies are ready for delivery.
6.2 The delivery period is reasonably extended:
6.3 The Buyer shall be entitled to claim compensation for loss occasioned by default in the event of delayed deliveries, provided it can be proved that the delay is due to our fault and that he furnishes prima facie evidence for a damage suffered as a result of such delay. If a substitute delivery is made in good time, the Buyer cannot claim compensation for default. Compensation for default shall not ex-ceed 0.2% for every full week’s delay and shall by no means exceed 3% of the contract price of that part of supplies that is delayed. The first three (3) weeks of a delay shall not give rise to any claim for compensation. Once the upper limit fixed for compensation for default has been reached, the Buyer shall grant us an adequate additional period in writing. If this additional period is not observed for reasons within our control, the Buyer is entitled to refuse acceptance of the delayed part of the supplies concerned. If a partial acceptance of supplies cannot be reasonably expected of him for economic reasons, he shall be entitled to withdraw from the Contract and to claim refund of payments already made, against restitution of supplies received.
6.4 The Buyer shall not be entitled to raise any claims and he can assert no rights in the event of delayed supplies or services, except those expressly stipulated in this Art.6. Further claims for damages may be raised only in the event of damage caused by gross negligence or unlawful intent and only to the extent the above compensation for default has proved insufficient to cover the damage caused.
7. Passing of Benefit and Risk
The benefit and the risk shall pass to the Buyer the moment the delivery leaves our works at the latest. If delivery is postponed at the Buyer’s request, or delayed for any reason beyond our control, the risk shall pass to the Buyer at the time the delivery was originally scheduled to leave our works. From this moment, the products shall be stored and insured for the account and at the risk of the Buyer.
8. Examination and Acceptance
8.1 Each delivery shall be examined by us, to the extent this is customary, before leaving our works. If the Buyer wants additional examinations to be conducted, they shall have to be agreed on separately and are carried through at the Buyer’s expense. A special acceptance examination and the provisions for its implementation shall be made the object of a special agreement.
8.2 The Buyer shall examine deliveries received and services obtained within a reasonable period of time and shall notify us immediately in writing in the event that defects exist. If the Buyer fails to notify, deliveries and services are deemed to have been accepted subject to hidden defects, if any.
8.3 We undertake to remedy defects/deficiencies that have been notified pursuant to Art.8.2 above, at our discretion, either by consignment of replacement, or on repair as soon as possible. The Buyer shall grant us the time and provide the opportunity for such subsequent improvement. Insofar as defective parts have to be replaced, such defective parts shall pass into our ownership.
8.4 Defective deliveries or insufficient services do not confer to the Buyer any rights or claims except those expressly specified in Art.8 and Art.9 (warranty, liability in the event of hidden defects).
9. Warranty, Liability for Hidden Defects
9.1 Save as expressly provided otherwise, the warranty period (period of guarantee) is twenty-four (24) months for Swissbit-branded SD-, uSD-, SSD, CFast- and USB- products; thirty-six (36) months for Swissbit branded CFC- and MMC-products; forty-eight (48) months for Swissbit-branded Industrial-DRAM-products and it shall run from the departure of the delivery from our works. All other products, in particular non-Swissbit-branded products, warranty period is twelfe (12) months. If dispatch of the products is delayed for reasons beyond our control, the warranty period shall ran after notification of readiness for dispatch. The warranty period for replaced or repaired parts of the products is six (6) months starting, as the case may be, from the moment the replacement has been effected, or the repair work has been finished, provided that the warranty period for the products as a whole, pursuant to the preceding paragraph,
expires at an earlier date.
9.2 The right to raise warranty claims expires prematurely if the Buyer or third parties carry out repair work or effect modifications without our prior written consent, or if the Buyer, in the event of a defect, fails to take immediately all appropriate steps to mitigate resulting damage and grants us the opportunity to remedy such defect.
9.3 We undertake to replace or repair at our discretion and as soon as possible upon written notification by the Buyer, all parts of the products of which it has been proved that they have become defective or unserviceable, before the end of the warranty period, due to faulty material or construction, or imperfection in the execution. Faulty parts shall have to be sent to us on request. Such faulty parts as have been replaced by new ones shall become our property. After expiry of the warranty period pursuant to Art.9.1 para.1, a warranty for replaced or repaired parts of the products (Art.9.1 para.2) is given for the replaced or repaired parts only, whereas the costs incurred in relation with the removal, transport and reinstallation of such parts shall be assumed by the Buyer.
9.4 Warranted characteristics are only those characteristics that have been expressly qualified as such by the respective specifications and shall be guaranteed up to the expiry of the warranty period at the latest. If warranted characteristics are missing, in full or in part, the Buyer shall in the first place be entitled to claim subsequent improvement to be carried out by us immediately, whereas the Buyer shall grant us the necessary time and opportunity to perform. If the attempt at subsequent improvement proves unsuccessful or succeeds in part only, the Buyer shall be entitled to demand an adequate price reduction. If a defect is so serious that it cannot be remedied within a reasonable period of time and if the products or services rendered cannot answer the agreed purpose at all, or answers this purpose only to a considerably reduced extent, the Buyer shall be entitled to refuse acceptance of any defective parts supplied, or, if a partial acceptance cannot reasonably be expected of him for eco-nomic reasons, to withdraw from the Contract. We shall be held liable only for the refund of such amounts as have been paid to us for such parts in respect of which the withdrawal from the Contract has taken place.
9.5 Excluded from warranty and liability is all damage of which it cannot be proved that it is due to faulty material or construction, or imperfection in the execution, such as depreciation due to ordinary wear and tear, damage resulting from insufficient maintenance, non-compliance with operating instructions, excessive strain, inadequate means of operation, chemical effects, construction or assembly work not executed by us, or due to other causes beyond our control.
9.6 With respect to faulty software, warranty claims may be raised only if the deficiency can be reproduced using the unaltered original software version supported by as detailed as possible documentary evidence. In the event of loss of or damage to data and/or data storage media, warranty does not extend to expenditure relating to the restoration of lost data.
9.7 The Buyer shall not be entitled to assert any rights or raise any claims – other than those expressly stipulated in Art.9.1 to Art.9.4 inclusive – with respect to faulty material or construction, or imperfection in the execution, or on account of warranted characteristics that allegedly are missing.
10. Exclusion of Further Liability
The Buyer shall have no claims other than those expressly stated in the present General Terms and Conditions, irrespective of the grounds they may be based on. Thus, the Buyer shall raise no claim for damages or a reduction in price, and he shall have no right to withdraw from or terminate the Contract, unless such claim or right is expressly provided for under the General Terms and Conditions. The Buyer shall on no account have a claim for compensation of damage that does not affect the products as such, as for instance loss of production, loss of use, lost orders, profit loss or any other direct or consequential damage.
11. Export Regulations
Save as expressly provided otherwise, re-exportation of the products, or parts thereof, is permissible only in accordance with the terms set forth in the End-Use Certificate (EUC) used for presentation to the Export Control Authorities of the Federal Republic of Germany, accepted by the Buyer by signing the EUC.
12. Applicable Law
The present contractual relationship is governed by Swiss substantive law, in particular the provisions relating to purchase of the Swiss Code of Obligations. The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Law on the International Sale of Goods of April 11, 1980), shall be excluded.
13. Venue for both the Buyer and for ourselves shall be St.Gallen, Switzerland. We shall, however, be entitled to bring action against the Buyer also at the place of his registered office.